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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RAGNA TRIPLETT-FAZZONE, 

 Plaintiff, 

 v. 

CITY OF COLUMBUS DIVISION 

OF POLICE, et al., 

 Defendants. 

 

Case No. 2:12-cv-331 

 Judge Sargus 

Magistrate Judge King 

 

OPINION AND ORDER

 This matter is before the Court on Plaintiff’s Motion to Extend 

the Time for Service to Defendant Josh Wycuff and Newly Discovered 

Defendant Officer J.P. Burns, Doc. No. 57, and Plaintiff’s Motion to 

Extend the Time for Service to Defendant Josh Wycuff and Newly 

Discovered Defendant Officer J.P. Burns, Doc. No. 58 (“Motion to 

Extend”).1

 

I. BACKGROUND 

 On April 13, 2012, plaintiff, who is proceeding without the 

assistance of counsel, filed the original Complaint, Doc. No. 2, which 

names as defendants the “City of Columbus Division of Police,” 

“Franklin County Sheriff’s Department,” “The Sugar Bar” and “Unknown 

Defendants.” Id. Thereafter, certain defendants filed answers to the 

                                                            

1 Although the motions reflect the same title, the earlier motion, Doc. No. 57, 

filed on December 31, 2012, contains two handwritten pages and explains that 

plaintiff had difficulty printing a typed motion, which appears to be Doc. 

No. 58, filed on January 2, 2013. In light of this, and because both motions 

contain the same Exhibit 1, the Court will regard both filings as a single 

motion filed on December 31, 2012. 

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Complaint. See Doc. Nos. 4, 6. On August 30, 2012, plaintiff filed 

an amended complaint, Doc. No. 10 (the “Amended Complaint”), naming 

the same entities as defendants, i.e., the “City of Columbus Division 

of Police,” “Franklin County Sheriff’s Department,” “The Sugar Bar” 

and “Unknown Defendants,” as well as several individuals, including 

Chris Corso, Michael Gallicchio, Brian Swanson, Josh Wycuff, “Officer 

(Detective) Brian Keefe” and Officer Daniel Hargus. Id. Asserting 

claims under 42 U.S.C. § 1983, plaintiff alleges that, on April 15 and 

16, 2010, defendants violated plaintiff’s rights under the 4th, 5th, 

8th and 14th Amendments when she was arrested, subjected to excessive 

force during the course of her arrest and physical abuse while 

detained in the workhouse. Id. at 2-8. Plaintiff also asserts state 

law claims of emotional distress, defamation and battery. Id. at 6. 

 This Court established a deadline of September 28, 2012 for 

filing motions or stipulations for leave to amend the pleadings. 

Preliminary Pretrial Order, Doc. No. 12, p. 2. The deadline for 

discovery is April 15, 2013 and motions for summary judgment may be 

filed no later than May 15, 2013. Id. The Court also advised 

plaintiff that “the claims against any defendant not served with 

process within 120 days of the filing of the pleading asserting the 

relevant claim (i.e., the Complaint or Amended Complaint) must be 

dismissed unless plaintiff seeks an extension of time in which to 

effect service of process.” Id. at 1-2. 

 On August 30, 2012, a summons was issued to, inter alios, Josh 

Wycuff, Doc. No. 9. That summons was returned unexecuted, Doc. No. 

13. Nevertheless, on October 2, 2012, defendant Wycuff filed a motion 

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to dismiss plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6), 

Doc. No. 22, and later filed a supporting reply memorandum, Doc. No. 

36. Defendant Wycuff has also moved to strike one of plaintiff’s 

motions, Doc. No. 48, and has responded to her motion for leave to 

file a sur-reply, Doc. Nos. 54, 55. 

 On February 21, 2013, another summons was issued to defendant 

Wycuff. Doc. No. 63. At the same time, plaintiff sought the issuance 

of a summons for service directed to J.P. Burns, which the Court 

rejected. Notice of Non-Issuance of Summons, Doc. No. 64, p. 1 

(advising plaintiff that the summons is not directed to a named 

defendant and asking that plaintiff “resubmit a summons in proper form 

for issuance”). 

 On March 1, 2013, plaintiff filed documents reflecting her 

attempts to effect service on defendant Wycuff and Officer J.P. Burns. 

Doc. Nos. 66, 67. Both documents indicate that plaintiff attempted a 

FedEx shipment to each individual. The filings do not reflect the 

signature of either individual. These filings do not reflect 

effective service of process on either defendant Wycuff or Officer 

J.P. Burns. A plaintiff may not personally effect service of process. 

See Fed. R. Civ. P. 4(c)(2)(“Any person who is at least 18 years old 

and not a party may serve a summons and complaint.”) Moreover, the 

filings do not indicate that a copy of either the original Complaint

or the Amended Complaint accompanied the summons. See Fed. R. Civ. P. 

4(c)(1)(“A summons must be served with a copy of the complaint.”) 

Finally, service by FedEx shipment is not authorized by either federal 

or state law. See Fed. R. Civ. P. 4(e). 

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 Under these circumstances, the Court will consider the substance 

of plaintiff’s motion. 

II. JOSH WYCUFF 

 The docket reflects that defendant Wycuff has actively 

participated in this litigation since the filing of the Amended 

Complaint. See, e.g., Doc. Nos. 22, 36, 48, 54, 55. Indeed, even in 

the motion to dismiss, Doc. No. 22, defendant Wycuff does not assert a 

defense based on any defect in service of process on him. Based on the 

present record, defendant Wycuff has waived any deficiency in service 

of process on him. See Fed. R. Civ. P. 12(h)(1). 

III. OFFICER J.P. BURNS 

 Neither the original Complaint nor the Amended Complaint names 

Officer J.P. Burns as a defendant. Instead, plaintiff apparently 

seeks to replace one of the “Unknown Defendants” referred to in those 

pleadings with Officer J.P. Burns. Motion to Extend, p. 4 (explaining 

that plaintiff recently learned through discovery that Officer Burns 

is “the previously unknown individual” who committed certain alleged 

acts against plaintiff). Although plaintiff cites to various rules to 

support her motion for additional time in which to serve Officer 

Burns, i.e., Fed. R. Civ. P. 6, 21 and 60, it is Rule 15(c) that 

actually governs her request to amend the complaint to add Officer 

J.P. Burns as a defendant in place of one of the “Unknown Defendants.” 

See, e.g., Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996) 

(“Substituting a named defendant for a ‘John Doe’ defendant is 

considered a change in parties, not a mere substitution of parties” 

that must meet the requirements or Rule 15(c) “in order for the 

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amendment adding the named defendant to relate back to the filing of 

the original complaint.”). 

 Rule 15(c) provides, in pertinent part, the following: 

(1) When an Amendment Relates Back. An amendment to a 

pleading relates back to the date of the original pleading 

when: 

 (A) the law that provides the applicable statute of 

limitations allows relation back; 

 (B) the amendment asserts a claim or defense that 

arose out of the conduct, transaction, or occurrence set 

out--or attempted to be set out--in the original pleading; 

or 

 (C) the amendment changes the party or the naming of 

the party against whom a claim is asserted, if Rule 

15(c)(1)(B) is satisfied and if, within the period provided 

by Rule 4(m) for serving the summons and complaint, the 

party to be brought in by amendment: 

 (i) received such notice of the action that it 

will not be prejudiced in defending on the merits; and 

 (ii) knew or should have known that the action 

would have been brought against it, but for a mistake 

concerning the proper party's identity. 

 The United States Court of Appeals for the Sixth Circuit has held 

that “new parties may not be added after the statute of limitations 

has run, and that such amendments do not satisfy the ‘mistaken 

identity’ requirement of” this rule. Cox, 75 F.3d at 240. Therefore, 

a court must deny a motion for leave to amend where the proposed 

amendment would be futile because it is untimely or barred by the 

applicable statute of limitations. See, e.g., Beatty v. Sunbeam 

Corp., Nos. 03-1969/1970, 110 Fed. Appx. 677, at *677 (6th Cir. Oct. 

6, 2004) (affirming denial of leave to amend where the statute of 

limitations had run and where the amendments could not relate back 

under Rule 15(c)); Shaw v. Pfeiffer, No. 2:05-CV-00176, 2006 U.S. 

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Dist. LEXIS 63932, at *20-21 (S.D. Ohio Sept. 7, 2006) (denying leave 

to amend where the requested amendment would be futile because the 

statute of limitations for the plaintiff’s § 1983 claims had passed). 

 Here, plaintiff alleges that the events underlying her claims 

occurred on April 15 and 16, 2010. Plaintiff’s claims are governed by 

either a one- or two-year statute of limitations. See, e.g., Banks v. 

City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003) (stating that the 

statute of limitations for § 1983 claims is two years); O.R.C. §§ 

2305.11(A) (providing a one-year statute of limitations for defamation 

claims), 2305.111(B) (providing a one-year statute of limitations for 

claims of battery); Ruckman v. Riebel, No. 2:11-cv-874, 2012 U.S. 

Dist. LEXIS 131238, at *11 (S.D. Ohio Sept. 14, 2012) (“Plaintiff's 

claim for intentional infliction of emotional distress is also limited 

by the one year statute of limitations applicable to assault, pursuant 

to Ohio Revised Code § 2305.111(B), because the acts underlying this 

claim would support another tort.”) (citing Freeman v. City of 

Lyndhurst, No. 1:09 CV 2006, 2010 U.S. Dist. LEXIS 23238, at *9-12 

(N.D. Ohio Mar. 12, 2010)). The statute of limitations applicable to 

plaintiff’s claims expired on April 16, 2011 or April 16, 2012, which 

is well before her December 31, 2012 motion seeking leave to join 

Officer J.P. Burns as a defendant. In short, plaintiff’s attempt to 

amend the complaint to add Officer J.P. Burns as a defendant is timebarred and would therefore be futile. Moreover, the fact that 

plaintiff previously referred to “Unknown Defendants” does not change 

this analysis because naming “Doe” defendants will not save 

plaintiff’s untimely amendment. See, e.g., Cox, 75 F.3d at 240 (“It 

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is familiar law that ‘John Doe’ pleadings cannot be used to circumvent 

statutes of limitations, because replacing a ‘John Doe’ with a named 

party in effect constitutes a change in the party sued.”). 

WHEREUPON, Plaintiff’s Motion to Extend the Time for Service to 

Defendant Josh Wycuff and Newly Discovered Defendant Officer J.P. 

Burns, Doc. No. 57, and Plaintiff’s Motion to Extend the Time for 

Service to Defendant Josh Wycuff and Newly Discovered Defendant 

Officer J.P. Burns, Doc. No. 58, are DENIED as moot as to defendant 

Josh Wycuff and DENIED as to Officer J.P. Burns. 

March 5, 2013 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

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